Category: Criminal Procedure

Victim Restitution and the Ex Post Facto Clause

“Moving the goalposts” is widely recognized as an unfair thing to do. In criminal law, the issue rises to a constitutional one. From the beginning, the Constitution has forbidden both Congress and state legislatures from passing “ex post facto laws.”* The primary, and simple, effect of this prohibition is that a legislature cannot make an act criminal or increase the punishment for it after it has been committed, i.e., “after the fact,” in Latin.

Does a law that increases the length of time in which a restitution award may be collected constitute an ex post facto law? The U.S. Supreme Court today took up a case to decide that question, Ellingburg v. United States, No. 24-482.

There are two good arguments why the answer is no. Continue reading . . .

No, Defendant Does Not Get Off Scot-Free for a Technical Error

This post on March 16 discussed the Supreme Court case of Smith v. United States, No. 21-1576. Smith had been tried in the wrong district, and his conviction was reversed on appeal. He claimed that the venue was an element of the offense, such that the Double Jeopardy Clause precluded his retrial in the correct district.

I wrote then, “When this case first came up, I thought the claim to be so obviously wrong that there was no chance the Court would buy it. I still think so.”

Sure enough, the high court today decided that Smith can be retried. Unanimously. Continue reading . . .

Forfeiture Procedure

The U.S. Supreme Court today took up a case on forfeiture procedure for full briefing in the coming months and argument next fall.

The Question Presented in Culley v. Marshall, No. 22-585, as framed by the attorney for the petitioner, is:

In determining whether the Due Process Clause requires a state or local government to provide a post seizure probable cause hearing prior to a statutory judicial forfeiture proceeding and, if so, when such a hearing must take place, should district courts apply the “speedy trial” test employed in United States v. $8,850, 461 U.S. 555 (1983) and Barker v. Wingo, 407 U.S. 514 (1972), as held by the Eleventh Circuit or the three-part due process analysis set forth in Mathews v. Eldridge, 424 U.S. 319 (1976) as held by at least the Second, Fifth, Seventh, and Ninth Circuits.

Counterman v. Colorado, No. 22-138, on anti-stalking laws and the First Amendment, will be argued Wednesday. CJLF’s amicus brief is here.

Getting Off Scot Free for a Technical Error?

Paul Larkin and Cully Stimson have this article in the Federalist Society Review previewing the case of Smith v. United States, No. 21-1576, set for argument in the Supreme Court Tuesday, March 28.

Smith was tried in the wrong district, so the Eleventh Circuit reversed his conviction and granted him a new trial in the correct district. He claims that’s not enough; he should get off completely. Larkin and Stimson explain why that is not the law. Continue reading . . .

Co-Defendant Statements and Joint Trials

The U.S. Supreme Court this morning took up a case on the perennial knotty problem of the admissibility of co-defendant statements in joint trials. The case is Samia v. United States, No. 22-196. The out-of-court statement of one defendant is admissible against the defendant who made it, but generally not to incriminate other defendants. Continue reading . . .

Venue and Double Jeopardy

Does a venue error equal a Get Out of Jail Free card? That is, if the government files its charges in a locale that is later determined to be incorrect, does the defendant walk regardless of how clearly guilty he is or how atrocious the crime is? Or can he be retried in the venue now deemed correct?

The U.S. Supreme Court took up this question this morning in Smith v. United States, No. 21-1576.

California Legislature Ramming Through Another Pro-Murderer Bill

Today, there was a hearing scheduled on California Senate Bill 300, a bill to change the state’s “special circumstance” law in favor of the murderers, with an implication that it applies retroactively to overturn cases already properly tried. However, the “hearing” has been limited to people stating if they support or oppose, with no opportunity to give the reasons, making it pointless. So here is what I would have said.

In California, first-degree murder with “special circumstances” is punishable by death or life in prison without possibility of parole. The law is subject to the criticism that the special circumstances are not special enough, and I have proposed some pruning myself in the past. SB 300 would limit special-circumstance murder for accomplices to those who can be proved to have intended to kill. In 1990, Proposition 115 added a “reckless disregard of human life” alternative for accomplices convicted of first-degree murder under the felony murder rule, implementing an option allowed by the U.S. Supreme Court in Tison v. Arizona (1987).

Applied to future cases, that would not necessarily be a bad change. It would have virtually no effect on capital punishment, as today’s juries seldom-to-never impose the death penalty on accomplices without an intent to kill. The huge problem is imposing such a fact-finding requirement retroactively. This is not speculation. We have been there and done that. It was the key issue in the first capital case I ever briefed. Continue reading . . .

Time to Overrule Miranda?

Yes, there is hope.  I explain why in my Substack entry,  here.  As a teaser, my first two paragraphs are:

In an earlier entry, “Democracy Dies in Judicial Imperialism,” I noted the similarity between Roe v. Wade and Miranda v. Arizona. In each case, the Court treated the liberal elite’s view of law as if it were part of the Constitution, thus to insulate it from any input from that pesky hoi polloi sometimes known as “voters.”

Roe and Miranda are probably the two most important examples of the sort of obey-your-betters judicial imperialism I was talking about. Roe went down three weeks ago. In this entry, I ask whether it’s time for Miranda to follow it into history’s dustbin. To avoid any suspense, the short answer is yes — indeed it’s past time — but I have my doubts that this is going to happen any time soon, even with a Supreme Court, like this one, that takes the Constitution seriously, both for what it says and what it refrains from saying. I’ll explain momentarily why I think Miranda will be with us for a while despite a more disciplined Court.

The Abortion Case and Criminal Law

The big news in law is, as we all know by now, the Supreme Court’s leaked draft opinion (per Alito, J.) overruling Roe and Casey.  The central holding of the draft is that the Constitution simply has nothing to say about abortion, and therefore that whether and in what ways it should be regulated are matters left to the political process.

CJLF takes no position on abortion, and neither for present purposes do I (a mere guest contributor here in any event).  But there is potentially very important news for criminal law in the draft opinion.

Continue reading . . .

Supreme Court Takes Up Arizona Murder Case

This morning, the U.S. Supreme Court released this orders list from last Friday’s conference. The Court took up the case of Cruz v. Arizona, No. 21-846. The case involves the familiar scenario of a murderer who could have made a particular objection at trial or on direct appeal but did not. When he tries to raise the objection in a collateral attack on the judgment, the state court tells him it is too late. As usual, the issue in this case has nothing whatever to do with whether the defendant committed the crime. It only relates to whether he should receive the punishment his crime deserves or whether justice should be tempered with mercy to let him off with less than he deserves.

From the state’s brief in opposition:

On the day he was killed, Officer Patrick Hardesty was questioning [John] Cruz as part of a hit-and-run investigation. App. 2a. During the questioning, Cruz ran from Officer Hardesty and Officer Hardesty gave chase on foot. Id. at 202–03, ¶¶ 2–4. At some point during the chase, Cruz shot the officer five times, emptying the five-shot revolver he was carrying. Two shots struck Officer Hardesty’s protective vest, two others struck him in the abdomen below the vest, and one entered his left eye, killing him almost instantly. Id. at 203, ¶¶ 5–7. Four of the shots were fired from no more than a foot away. Id. at 203, ¶ 6.

Cruz claims that the jury should have been told he would not be eligible for parole if they gave him life in prison. The Supreme Court precedent on that point was decided nine years before the crime. Cruz’s trial attorney did not request such an instruction, even though the trial judge offered one while denying a related motion, and his appellate attorney did not make that objection on direct appeal.

This is familiar turf for CJLF. We played a role in developing the rules that generally prohibit this kind of “heads I win, tails we take it over” gamesmanship. Continue reading . . .